Sunday, 23 December 2007

Slowly but surely the people, the citizens of the European Union, emerge with legal rights and obligations.

The Charter of Fundamental Rights of the European Union was prepared by the first broadly based Convention, encompassing members of the European Parliament and national parliaments. At the summit in Nice, in December 2000, the member states were not yet unanimously ready to incorporate the Charter into the Treaty of Nice.

The Charter was jointly proclaimed by the European Parliament, the Council and the European Commission on 7 December 2000, and it became politically but not legally binding (OJ 18.12.2000, C 364/1).

The second Convention incorporated the Charter into the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (OJ 16.12.2004, C 310/1), where it became Part II.

Since the Constitutional Treaty was not ratified by all member states, the Charter has continued to live on as a solemn political proclamation.

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The intergovernmental conference (IGC 2007) decided, in line with its June mandate, to make the Charter legally binding without incorporating the text into the Reform Treaty, now called the Treaty of Lisbon.

One day before the signing of the Treaty of Lisbon, the Charter was solemnly proclaimed in Strasbourg by the European Parliament, the Council and the European Commission. The Charter of Fundamental Rights of the European Union has been published in the Official Journal of the European Union (OJ 14.12.2007, C 303/1) with the Explanations relating to the Charter of Fundamental Rights (C 303/17).

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Since the solemn proclamation ceremony in Strasbourg was marred by unseemly protests in the European Parliament, it is appropriate to mention that the 27 member states’ governments and the European Commission have acted unanimously, and that the groupings against citizens’ rights had suffered a resounding defeat, 534 MEPs voting in favour of the Charter, 85 against and 21 abstentions.

This disgraceful tumult against the rights of EU citizens has been justly reprimanded, although friends of loutish behaviour have done their utmost to turn their soul buddies into champions of free speech for trying to disrupt a solemn and, for most Europeans, joyful occasion.

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This is not the place for detailed analysis of the Charter, but a brief look at the headlines of the Articles gives an overview of the freedoms, rights and principles it contains:

TITLE I DIGNITY

Human dignityRight to lifeRight to the integrity of the personProhibition of torture and inhuman or degrading treatment or punishmentProhibition of slavery and forced labour

TITLE II FREEDOMS

Right to liberty and securityRespect for private and family lifeProtection of personal dataRight to marry and right to found a familyFreedom of thought, conscience and religionFreedom of expression and informationFreedom of assembly and of associationFreedom of the arts and sciencesRight to educationFreedom to choose an occupation and right to engage in workFreedom to conduct a businessRight to propertyRight to asylumProtection in the event of removal, expulsion or extradition

TITLE III EQUALITY

Equality before the lawNon-discriminationCultural, religious and linguistic diversityEquality between women and menThe rights of the childThe rights of the elderlyIntegration of persons with disabilities

TITLE IV SOLIDARITY

Workers’ right to information and consultation within the undertakingRight of collective bargaining and actionRight of access to placement servicesProtection in the event of unjustified dismissalFair and just working conditionsProhibition of child labour and protection of young people at workFamily and professional lifeSocial security and social assistanceHealth careAccess to services of general economic interestEnvironmental protectionConsumer protection

TITLE V CITIZENS’ RIGHTS

Right to vote and to stand as a candidate at the elections to the European ParliamentRight to vote and to stand as a candidate at municipal electionsRight to good administrationRight of access to documentsEuropean OmbudsmanRight to petitionFreedom of movement and of residenceDiplomatic and consular protection

TITLE VI JUSTICE

Right to an effective remedy and to a fair trialPresumption of innocence and right of defencePrinciples of legality and proportionality of criminal offences and penaltiesRight not to be tried or punished twice in criminal proceedings for the same criminal offence

TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

Field of applicationScope and interpretation of rights and principlesLevel of protectionProhibition of abuse of rights

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Why is the Charter important?

Indeed, the Charter contains no new rights. They all exist in the EU Treaties, in the the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe) and various other human rights documents.

But bringing these various rights together, and making them visible for the citizens of the Union, is a manifestation of shared European values. The result is the most up to date legally binding human rights document on earth, and it offers the citizens a basis for scrutiny of EU institutions and member states when they implement European Union law.

The political rights of the Union’s citizens are still underdeveloped, but otherwise the Charter is a step towards recognition of the interests of the citizens as the foundation for the European project.The Charter is a source of pride for the EU citizens, and it is going to be a source of reference for human rights in the world.

Naturally, the Charter would have been more visible if it had become a part of the Lisbon Treaty (and of future consolidated versions of the Treaty).

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The European Union is given leave to accede to the European Convention for the Protection of Humans Rights and Fundamental Freedoms.

The constitutional traditions common to the Member States form part of the general principles of European Union law.

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The Treaty of Lisbon (Official Journal of the European Union 17.12.2007, C 306/1) repeals Articles 4 and 5 of the Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1). Consequently, the following Article is numbered 6, the present one being replaced by the following

Article 6

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

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Unanimity among the member states’ governments has come at a price. The unity of EU law is diminished by the opt-outs of the governments of the United Kingdom and Poland.

See Protocol Number 7 on the application of the Charter of Fundamental Rights to Poland and the United Kingdom, as well as the Polish declarations 51 and 53 annexed to the Treaty of Lisbon.

The new Polish government has not been able to relinquish the opt-out, since it needs the support of the morally conservative opposition to ratify the Treaty of Lisbon. But the new government wants Poland to become a constructive force in EU politics, so a future renouncement of the opt-out seems to be hanging in the air.

That would leave Great Britain as the only member state fundamentally out of tune with mainstream European values on human rights.